Forrest v. Ford

Bobby FORREST v. Milton FORD,
Andrew Jefferies, and Andrew
Jefferies Realty and Bail
Bonding Company

95-1204         ___ S.W.2d ___

   Supreme Court of Arkansas
  Opinion delivered March 25,
1996


Appeal & error -- appellant's
argument did not fully address
     pertinent facts -- no
     error found. --
     Appellant's contention
     that the trial court
     erred in instructing the
     jury on the defense of
     justification was not
     reached where appellant
     argued on appeal that,
     because the appellee
     bondsman pleaded guilty
     to third-degree battery
     in the criminal
     proceeding that arose
     from the chase and
     shooting incident and did
     not raise the
     justification defense in
     the criminal proceeding,
     he was estopped from
     raising the justification
     defense in this
     subsequent civil
     proceeding; however,
     while the record
     indicated the trial court
     granted a motion in
     limine to exclude
     references to the fact
     appellee was charged or
     convicted of a crime, and
     while the record also
     indicated there was a
     bench discussion during
     the civil trial about the
     bondsman's guilty plea,
     the record also indicated
     that an order of
     expungement, which was
     entered of record in the
     criminal proceeding, was
     proffered by the defense
     at this civil trial and
     stated that, under Act
     346 of 1975, appellee was
     discharged without court
     adjudication of guilt and
     was exonerated of any
     criminal purpose; the
     order of expungement
     stated further that the
     appellee could reply in
     the negative to questions
     pertaining to past
     criminal convictions in
     instances wherein his
     civil rights or liberty
     might be affected, thus,
     it was not clear without
     further research, what
     effect, if any, the order
     of expungement entered
     pursuant to Act 346 of
     1975 had on the premise
     of appellant's argument;
     the court will not do
     appellant's research for
     him; no error was found
     on the argument presented
     and the judgment was
     affirmed.


     Appeal from Pulaski
Circuit Court; Sixth Division;
David Bogard, Judge; affirmed.
     Willard Proctor, Jr. for
appellant.
     No response.
 
     Donald L. Corbin, Justice.

3-25-96   *ADVREP6*





BOBBY FORREST,
                    APPELLANT,

V.

MILTON FORD, ANDREW JEFFERIES
and ANDREW JEFFERIES REALTY AND
BAIL BONDING COMPANY,
                    APPELLEES,



95-1204



APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, SIXTH DIVISION,
NOS. 92-1091 & 94-4116,
HON. DAVID BOGARD, JUDGE,



AFFIRMED.


                   Donald L. Corbin, Justice.


     Appellant, Bobby Forrest, appeals the judgment of the Pulaski
County Circuit Court in favor of separate appellees, Milton Ford,
Andrew Jefferies, and Andrew Jefferies Realty and Bail Bonding
Company, on appellant's complaint for negligent, intentional, and
reckless conduct.  For reversal, appellant contends the trial court
erred in instructing the jury on the defense of justification. 
This case presents a question about the law of torts.  Jurisdiction
is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-
2(a)(16).
     Evidence presented at trial revealed the following facts. 
Appellant entered into a bail-bond agreement with appellees Milton
Ford and Andrew Jefferies Realty and Bail Bonding Company under
which bond was posted on appellant's behalf with the Jacksonville
Municipal Court.  After receiving notice that appellant failed to
appear in circuit court, appellee Ford, a licensed bail bondsman
and agent of Andrew Jefferies Realty and Bail Bonding Company,
began to search for appellant.  Appellant ran from Ford, and a
chase ensued through a residential neighborhood.  Ford fired one or
two warning shots into the air and then fired at appellant's
shoulder.  While running from Ford, appellant felt pain in his
shoulder from the gunshot and then fell and injured his ankle. 
Appellant sought recovery for medical expenses, pain and suffering,
and punitive damages associated with the ankle and shoulder
injuries he sustained in the chase.
     The subject of this appeal is a jury instruction that
appellant describes as stating the justification defense.  The
challenged instruction was given to the jury over appellant's
objection and stated as follows:
          The defendant in this case claims his actions were
     justified and had the burden of proving each of four
     essential propositions:
          First, that the defendant was a law enforcement
     officer;
          Second, that the defendant reasonably believed that
     the use of such force was necessary to effect an arrest
     of the plaintiff or to prevent the escape from custody of
     the plaintiff;
          Third, at the time the defendant used such force, he
     was making an arrest of the plaintiff or preventing the
     escape from custody of the plaintiff; and 
          Four, the defendant reasonably believed the
     plaintiff had committed or attempted to commit a felony.
          A felony is a criminal offense which has been
     defined by law to be a felony.
          A law enforcement officer is a person vested by law
     with duty to maintain public order or to make an arrest
     for an offense.
     (Arkansas Code Annotated 5-2-610(b)(1), Arkansas Code
     Annotated 5-1-102(12) and (16)(b), Arkansas Code
     Annotated 5-1-106(a), A.R.Cr.P. 1.6(a), Ark. Attorney
     General Opinion Number 78-42)

Appellant does not challenge the content or the applicability of
this instruction to this case.  Rather, he argued below and now
argues on appeal that, because Ford pleaded guilty to third-degree
battery in the criminal proceeding that arose from the chase and
shooting incident and did not raise the justification defense in
the criminal proceeding, he is estopped from raising the
justification defense in this subsequent civil proceeding.  None of
the appellees filed a brief in this appeal.
     The premise of appellant's argument is that Ford could have
but did not raise the justification defense in a previous criminal
proceeding.  While the record indicates the trial court granted a
motion in limine to exclude references to the fact Ford was charged
or convicted of a crime, and while the record also indicates there
was a bench discussion during this civil trial about Ford's guilty
plea, the record also indicates that an order of expungement, which
was entered of record in the criminal proceeding, was proffered by
the defense at this civil trial and states that, under Act 346 of
1975, Ford was discharged without court adjudication of guilt and
was exonerated of any criminal purpose.  The order of expungement
states further that Ford may reply in the negative to questions
pertaining to past criminal convictions in instances wherein his
civil right or liberty may be affected.  Thus, it is not clear
without further research, and appellant does not address, what
effect, if any, the order of expungement entered pursuant to Act
346 of 1975 has on the premise of appellant's argument.  We will
not do appellant's research for him.  Firstbank of Arkansas v.
Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).
     We find no error on the argument presented and affirm the
judgment.